United States: Post-Employment Rules And Restrictions For Former Federal Government Officials

Christopher DeLacy is a Partner and Andrew H. Emerson is an Associate in our Washington D.C. office.

Thinking of hiring a former federal government official? Better know the post-employment rules and restrictions:

Executive branch 

  1. Lifetime Ban - Former Executive Branch Employees and Officials may not "switch sides" in relation to a "particular matter" involving "specific parties" when the employee or official "personally and substantially" worked on the matter while employed by the US government. The U.S. Trade Representative and Deputy U.S. Trade Representative may not represent foreign governments or political parties before any agency, department or official in the entire U.S. government (includes behind the scenes aiding and advising). 
  2. Two-Year Ban - Former Executive Branch Employees and Officials may not "switch sides" for two years in relation to a "particular matter" involving "specific parties" if the matter was under the employee or official's official responsibility. Very Senior Officials (Level I of the executive schedule and Level II for the Executive Office of the President and White House employees) may not appear before their former agency or any covered official in any executive branch agency or departmentfor two years. Obama Administration Senior officials - senior officials (86.5% of the basic rate of pay for Level II of the executive schedule) who are non-career Presidential or Vice-Presidential appointees in the Obama administration, including non-career Senior Executive Service (SES) and Schedule C employees, may not appear before their former agency for two years. 
  3. One-Year Ban - Senior Executive Branch Officials (86.5% of the basic rate of pay for level II of the executive schedule) may not appear before their formeragency for one year (two years for Obama Administration appointees - see above). Very Senior and Senior Executive Branch Officials (plus Members of Congress and senior legislative staff - see above) may not represent foreign governments or political parties before any agency, department or official in the entire U.S. government for one year (it is a lifetime ban for the USTR or deputy USTR - see above) and this includes behind the scenes aiding and advising. Officers and Employees of the U.S. Government (including Members of Congress and congressional staff - see below) may not represent anyone other than the United States on any treaty or trade agreement if they worked "personally and substantially" on the treaty or trade agreement. 
  4. Executive Branch Lobbing Ban until January 20, 2017 - Non-career Presidential or Vice-Presidential Appointees serving in the Obama Administration, including non-career SES and Schedule C employees may not lobby any executive branch covered official until the end of the Obama administration. 

Legislative branch

  1. One-Year Ban - Members of the U.S. House of Representatives are prohibited from lobbying or making advocacy communications to either House of Congress or any legislative branch employee, for one year after the individual leaves the House. Senior House Staff (compensated at or above 75% of the rate of Member pay) are prohibited from making advocacy communications to their former office (personal office, committee - including Members, or leadership office) for one year. Senior Senate Staff (compensated at or above 75% of the rate of Member pay) are prohibited from making advocacy communications to any Senate officer, employee or Member for one year. Senate Rules (but not federal law) also prohibit former Senate staffers below the senior rate of pay from lobbying their former office (personal office, committee - including Members, or leadership office) for one year. Members of Congress and Senior House and Senate Staff may not represent foreign governments or political parties before any agency, department of official of the entire U.S. government for one year (this includes behind the scenes aiding and advising) and may not represent clients on any treaty or trade agreement for one year if they worked "personally and substantially" on the treaty or trade agreement. 
  2. Two-Year Ban - Members of the U.S. Senate are prohibited from lobbying or making advocacy communications to either House of Congress or any legislative branch employee, for two years after the individual leaves the Senate. 

In addition, restrictions apply while a current government employee or official is negotiating employment. The Office of Government Ethics (OGE) can provide general guidance on the executive branch post-employment restrictions and each federal agency or department has an ethics official (called a Designated Agency Ethics Official or DAEO) who can provide specific guidance. For the legislative branch, the House Ethics Committee or Senate Ethics Committee can provide guidance on post-employment restrictions.

For more information:

18 U.S.C. § 207 
Executive Order 13490
OGE - Post-Government Employment Guidance 
House Ethics - Post-Employment Restrictions
Senate Ethics - Post-Employment Restrictions

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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